The Portability Regulation (EU) 2017/1128 came into force on 1 April 2018. Part of the EU Commission’s aim to establish a Digital Single Market, the Regulation facilitates cross-border portability of online content. It allows for subscribed content services to “travel” with the subscriber throughout the entire European Union. Be it movies, sport events, music, e-books, online games, they all need to remain accessible when temporarily abroad in another Member State. Service providers need to make sure this travel option is provided to their customers. Providers of free-of-charge online content services may opt-in but if they do the Regulation applies to the full extent. Importantly, the Regulation applies to both new and existing subscriber contracts.
By 2 June 2018, providers of paid-for services must verify the Member State of Residence of each of their existing customers. To this end the Regulation contains a total of eleven test criteria, out of which the provider can select and use up to two in order to verify. Those include, for instance, payment information. Providers who make content available for free must review existing contracts within the first two months in which they enable cross-border portability. We recommend that service providers affected by the Regulation use the remaining time until 2 June to make sure that verification has been carried out properly and in time. In doing so, service providers should note that applicable privacy laws, including the GDPR 2016/679, must also be adhered to.
In most Member States, including the UK, France and Germany, subscribers are given a cause of action for breach of duty where a breach of the relevant Regulation provision, by the provider, causes damage to the subscriber. This applies to the obligation to verify the subscriber’s Member State of residence.